Seeking Supermajorities in the Senate

There’s been no shortage of excellent coverage of yesterday’s defeat of the Manchin-Toomey amendment on background checks for gun purchases. These pieces include Ezra Klein’s note about the impact of Senate malapportionment, Jon Bernstein’s piece on the impact of Senate rules, Dan Balz’s column on the limits of public opinion, Jennifer Steinhauer’s NYT piece on the impact of the gun lobby, and Ryan Lizza’s post on the effects of institutional and partisan forces.

I wanted to add just a short note to the discussions on the 60-vote thresholds imposed for adoption of each of the amendments (and a concluding observation about the lessons of the defeat of Manchin-Toomey’s amendment). Sean Sullivan posted a very good piece explaining why Sen. Majority Leader Harry Reid negotiated 60-vote thresholds for adoption of Manchin-Toomey, given that amendments typically require only a simple majority to pass. Sullivan notes that requiring sixty votes via a consent agreement is simply less time consuming than getting to a vote via the Senate’s cloture rule (which would of course still require sixty votes). Sullivan also suggests that Reid didn’t seek 51-vote thresholds for all of the amendments since that would have made it easier for GOP opponents of gun control to secure passage of weakening amendments.

Two minor amendments are in order, so to say, in explaining the logic of the 60-vote unanimous consent agreements (UCAs).

First, the decision to negotiate a 60-vote UCA certainly reflects the cumbersome nature of the cloture process, particularly given that there were (at least) seven amendments for which opponents would likely have demanded cloture before proceeding to up or down votes on the amendments. UCAs with 60-vote thresholds allow the Senate to proceed more expeditiously without asking opponents to give up their procedural rights to delay or block the Senate from moving forward. UCAs with 60-vote thresholds are attractive for other reasons as well: Such UCAs guarantee votes on substance rather than procedure, which may be attractive to senators. Given intense median and public scrutiny of the Senate’s action on Manchin-Toomey yesterday, both parties might have preferred voting on the substance of expanding background checks rather than casting a procedural vote on whether a vote should be taken.

Second, Reid and proponents of a tougher package of gun control certainly stood to benefit from 60-vote thresholds that foreclosed adoption of weakening amendments. Still, it’s important to keep in mind that the shape of the UCA was equally shaped by the demands of the minority leader, Mitch McConnell, and opponents of Manchin-Toomey. Why didn’t Reid try to negotiate a UCA to set all amendments at 51-vote thresholds? McConnell would not have consented to such an agreement. This is a minor point of emphasis, for sure. But it reminds us of the tough constraints faced by a majority leader in devising such agreements. We can point to the side-benefits of Reid asking for 60-vote thresholds. But the power in these negotiations lies equally with the minority whose consent is required for the majority to take votes that advance its policy agenda. Reid didn’t ask for simple majority thresholds on the majority’s amendments because he couldn’t get them.

Ultimately, regardless of the mechanics of yesterday’s Manchin-Toomey vote, the outcome was a reminder of the weakness of a common defense of the filibuster—what Steve Smith and I once called the “little harm thesis”: Few measures supported by a majority have ever been killed by a filibuster. Defenders of the filibuster claim that supermajority requirements moderate legislative measures, as they ensure that public policy better reflects the preferences of a popular majority. After all, as Sen. Manchin’s predecessor, Robert Byrd, often argued, a majority in the Senate might not reflect a popular majority outside the chamber. Given the breadth of public support for expanding background checks, the little harm thesis seems to ring a little hollow with the defeat of Manchin-Toomey’s compromise amendment.